Scottish Government

ISBN 0 7559 2669 2 (Web only publication)

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CONTENTS

Introduction
Summary of responses
•Amendments to Air Quality legislation - The Air Quality Limit Values (Scotland) Regulations 2003
•Amendments to the Nitrates legislation - The Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003
•Amendments to the Pollution Prevention and Control (Scotland) Regulations 2000
General comments
Next steps
List of respondents - Annex A

CONTACT

General questions on this document should be addressed to by way of e-mail, fax or post or telephone to: -

Telephone: 0131-244-7034
Fax: 0131-244-0195
E-mail ppd.consultation@scotland.gsi.gov.uk

If you have any specific questions relating to a particular issue contained in this document please contact: -

Air Quality claire.dodd@scotland.gsi.gov.uk
NVZs angela.paul@scotland.gsi.gov.uk
PPCeleanor.paterson@scotland.gsi.go.uk
NGO's access heather.mccabe@scotland.gsi.gov.uk

Further copies of this paper or the full consultation document paper 2005/1 published in February 2005 may be obtained from the above address. Both papers are also available on the Scottish Executive website at: www.scotland.gov.uk

Copies of this document will be made available in large print on request and summaries will also be made available in other languages by contacting the Scottish Executive at the above address or by telephoning or faxing the above numbers.

Introduction

1. The Scottish Executive considers the consultation process an important means of giving the public a greater sense of empowerment and an opportunity to participate and feel part in the evolution of Government policies. A well informed public has more to offer any decision making process by being able to give a more educated contribution to discussions on issues and topics which effect their lives and surroundings. It has long been recognised that giving people access to environmental information has a significant effect by encouraging the public to participate in important aspects vital to preserving the environment and also become conscious of sustainable development. The consultation process should not however be employed as a means to express individual concerns from either members of the public or from established organisations. These types of concern should be directed to the relevant authority to be dealt with separately.

2. The UK (together with the EU and some fifty other nations) subscribed to provisions of the United Nations Economic Commission for Europe ( UNECE) Convention following the conference held in Aarhus, Denmark in 1998 on Access to Information, Public Participation and Access to Justice relating to Environmental Matters. The European Union, itself a signatory to the Convention, has made two Directives as a basis of its Member States' transposition of the Convention.

3. The first component of the Convention dealing with 'Access to Information' and EU Directive 2003/4/ EC was the subject of a Scottish Executive consultation paper Access to Information - A Consultation (Paper 2004/5). The paper was published on 2 April 2004 and copies of the consultation and a summary of its responses can be found on the Scottish Executive's website. Directive 2003/4/ EC on access to information was transposed into domestic legislation in the Environmental Information (Scotland) Regulations 2004 and came into effect on 1 January 2005, the same date as the new Freedom of Information (Scotland) Act 2002. The regimes were aligned wherever possible.

4. On the 17 February 2005 the Scottish Executive published a consultation paper on the second component of the Aarhus Convention and Directive 2003/35/ EC, named ' Public Participation in Environmental Matters' - A Consultation (Paper 2005/1). The document brought together 3 of the 14 distinct issues which were affected by provisions set out in the Public Participation Directive 2003/35/ EC. Amendments proposed relating to each of the 3 legislative regimes were dealt within the consultation document under separately headed sections: -

• Amendments to Air Quality Legislation to transpose the Public Participation Directive (2003/35/ EC),
• Amendments to Nitrates Legislation to transpose the Public Participation Directive (2003/35/ EC) and
• Amendments to the Pollution Prevention and Control legislation to transpose the Public Participation Directive (2003/35/ EC)

5. The Scottish Executive received a total of 31 responses to this consultation and this paper is a summary of those responses.

Summary of Responses to the Public Consultation Document - (Paper 2005/1) 'Public Participation in Environmental Matters'

Amendment to the Air Quality legislation - The Air Quality Limit Values (Scotland) Regulations 2003

6. This section of the consultation paper relates to the implementation of the provisions in Article 2 for the Public Participation Directive 2003/35/ EC in relation to the Air Quality Framework Directive 96/62/ EC. In effect these provisions place an obligation on Scottish Ministers to provide for effective public participation in the preparation, modification and review of the air quality plans and programmes required to be drawn up under Article 8 of the Air Quality Framework Directive. Since, it is already the Executive's practice to engage in public consultation, the amending provision introduced by the Public Participation Directive will simply formalise existing practice.

7. Section 1 of the consultation paper related to Air Quality and invited comments on the following 3 questions: -

• Whether the suggested approach implemented the Public Participation Directive appropriately
• Whether the costs were correctly identified, and
• Whether there were any comments on the proposal t amend the Air Quality Limit Values (Scotland) Regulations 2003 to add an alternative method for the sampling and measurements of PM.

There were a total of 8 responses that commented on this of the consultation

8. Of those responding to question 1. four agreed with the approach. One respondent commented that amendments should be consistent with the provisions proposed in the Environmental Assessment (Scotland) Bill; one respondent thought that it would have the impact of making the process more protracted but would make the system more transparent; and one respondent thought that more detailed comments on the envisaged process of public participation would have been helpful.

9. In response to question 2. three respondents agreed that there would be no additional costs to industry or small businesses as a result of the proposed implementing Regulations. Two local authorities thought that if the public participation requirement was extended to air quality plans and programmes prepared by local authorities then additional funding would be required. One respondent believed that effective consultation could be expensive and it wasn't clear how this additional cost burden would be met or by whom.

10. Of those responding to question 3. four respondents agreed with the proposals. One respondent thought the wording in the consultation wasn't sufficiently clear about what was being proposed. Two respondents commented that they hoped that the proposed change wouldn't lead to a reduction in the sampling methods available or increase costs.

Amendment to the Nitrates legislation - The Action Programme of Nitrate Vulnerable Zones (Scotland) Regulations 2003

11. This section of the consultation paper relates to the implementation of the provisions in Article 2 for the Public Participation Directive (2003/35/ EC) relating to the Nitrates Directive (91/676/ EEC). In effect these provisions place and obligation on Scottish Ministers to provide for effective public participation in the preparation, modification and review of the Scottish Nitrate Vulnerable Zone Action Programme. Again, the amending provisions introduced by the Public Participation Directive will simply formalise existing practice.

12. At the time of the consultation, amendment regulations were still being drawn up so it set out the proposals for the measures to be introduced. These were that the measures should enable flexibility of approach in consulting the public; should be consistent with the transposition of the Public Participation Directive in other policies set out in the consultation paper; should be consistent with the Scottish Executive Code of Practice on Consultation; and should fully implement the obligations of the Public Participation Directive. Given that the measures formalised existing practice, the consultation paper anticipates that they would not result in additional costs to industry or businesses.

13. Section 2 of the consultation paper pertaining to Scottish Nitrate Vulnerable Zone Action Plan invited comment on 3 questions: -

• Whether the approach implemented the Public Participation Directive appropriately
• Whether the costs were correctly identified, and
• Whether there were any ways of reducing cost.

There were a total of 9 responses referred to or commented on this section of the consultation, 2 generally supported the section and another 2 had no comments.

14. Of those responding to first question 3 agreed with the approach 2 raised concerns about the criteria that would be used to determine whether proposed amendments were considered minor or major and therefore result in 'light' and 'full consultation'. One respondent commented that amendments should be consistent with the provisions proposed in the Environmental Assessment ( Scotland) Bill; one respondent commented that no timescale was indicted for the consultation process; and one respondent commented that the wording in the regulations about the account that Scottish Ministers were to take of comments or opinions should reflect the wording in the Directive.

15. In response to question 2, three respondents agreed with the costs.

16. In response to question 3, one respondent considered there were unlikely to be ways of reducing costs, 2 commented that keeping stakeholders well informed would make for an effective and constructive consultation mechanism, and another on commented that proposals for 'light consultation' would reduce costs.

Amendment to the Pollution Prevention and Control (Scotland) Regulations 2000

17. This section of the consultation paper sought to explain the changes to be made to the Pollution Prevention and Control (Scotland) Regulations 2000 ( PPC). These amendments will bring the PPC Regulations into line with the public participation provisions of the Aarhus Convention. The consultation invited views from individuals and organisations on the proposed amendments, which are required in the implementation of Article 4 of the Directive 2003/35/ EC on public participation, which specifically relates to the PPC Regulations.

18. At the time of the consultation, amendment regulations were still being drawn up so it set out the proposals for the measures to be introduced. These were that the measures should enable flexibility of approach in consulting the public; should be consistent with the transposition of the Public Participation Directive in other policies set out in the consultation paper; should be consistent with the Scottish Executive Code of Practice on Consultation; and should fully implement the obligations of the Public Participation Directive.

19. Section 3 of the consultation paper pertaining to the Pollution Prevention and Control (Scotland) Regulations 2000 invited views and comments on 12 questions (4 of which specifically related to issues around access to justice): -

• 1. whether you feel the approach outlined above implements the Public Participation Directive fully and appropriately;
• 2. how the proposed amendments to the PPC Regulations might impact on operators applying for PPC permits;
• 3. the implications for SEPA;
• 4. whether the proposed new advertising requirements described in paragraph 10 should be extended to applications for Part B installations;
• 5. whether you agree that the publication of draft SEPA determinations is an appropriate way to implement the PPD;
• 6. whether a 28 day period for the public to comment on draft determinations, as outlined in paragraphs 10 and 12, is an appropriate period, and if not what would be;
• 7. whether we should pursue the notion of having a "draft determination within 42 days" at the application stage, as outlined in paragraph 28, to shorten the application process in straightforward cases;
• 8. whether the proposed amendment is an adequate basis for including environmental NGOs for the purpose of having the legality of PPC permitting decisions reviewed by a court;
• 9. whether any additional criteria need be specified for the identification of environmental NGOs;
• 10. whether there is any particular stage at which decisions, acts or omissions may (or may not) be challenged;
• 11. on any question of compliance costs, and any effects or changes resulting from them on individuals or organisations; and
• 12. the draft partial Regulatory Impact Assessment.

20. There were a total of 21 responses referred to or commented on this section of the consultation, 15 generally supported the proposals.

21. Of those responding to the first question, most agreed that the outlined approach would fully implement the Public Participation Directive fully. One respondent indicated that they felt the current system for public involvement in the planning system and subsequent PPC applications already substantially met the requirements of the Directive without further changes, further advertising or further delays. Another respondent thought that the consultation took a fragmented and partial approach to a topic where there was scope for a more integrated solution.

22. In response to question 2, most respondents commented that there would be some additional costs to operators due to the changes and that the process of obtaining a permit should be kept as short as possible as any time delays would increase costs to operators.

23. In response to question 3, most respondents replied that this was an issue for SEPA alone to comment on. One respondent commented that the workload for SEPA would increase considerably for little environmental benefit. One respondent commented that SEPA should receive comprehensive guidance and funding to undertake this additional work. One commented that the timescale for implementing the Directive was extremely short and that systems and procedures must be in place that meet the new requirements by 25 June and that the indicative nature of the consultation document does not allow SEPA to undertake such preparation effectively.

24. In response to question 4, most respondents did not comment on this question. One commented that if no advertising takes place for Part B installations, then SEPA is open to challenge in the event of unforeseen environmental impacts. One other respondent agreed, one disagreed and one noted no comment.

25. In response to question 5, most respondents did not reply to this question directly although a number raised concerns around the issue of 'draft determinations'. Two commented that they did not agree with this question as they did not believe that the proposal to publish draft SEPA determinations was an appropriate way to implement PPD. Two respondent agreed that this would provide an improved focus for consultees and enable a more effective public participation process as sought by the Directive.

26. In response to question 6, most felt that 28 days was an appropriate length of time. One commented that if a draft determination was to be subject to public consultation then 28 days should be the maximum consultation period. Another agreed, subject to flexibility being acceptable under exceptional circumstances where technical or environmental concerns could be argued as justifying an extension. Another commented that 28 days was misleading as in reality it was likely to be 42 days or potentially more and that this is a +30% increase on the current PPC application timescale.

27. In response to question 7, most respondents agreed that a 'streamline' approach for straightforward applications should be pursued in order to keep costs and time delays to a minimum. Most respondents also noted that clearer guidance would first be required on what constituted a 'straightforward' application. Two respondents commented that it would be difficult for SEPA to produce a draft determination within 42 days.

28. In response to question 8, two respondents regarded the 'fragmented' (their words) approach to transposition of the Directive as inconvenient but tolerated it on condition that the Scottish Executive does follow up with the later round on alternatives to judicial review, dispute resolution, cost, etc. One consultee queried whether 'entitled to sue' was still an obstacle. Another suggested that the terms of Article 4(4) (a) ('…having sufficient interest…') is wider than 'title to sue' and that the Scottish 'proprietorial approach' was inappropriate.

29. In response to question 9, of four responses, one ( NGO) said that no further criteria were needed for NGOs. Another (local authority) urged caution at the risk of criteria excluding bodies. A third (Government research institute) thought that the simple 'environmental' criterion might exclude more broadly-based bodies. A fourth (Government agency) sought criteria relating to being well-established, of having a track record of working with other NGOs and government conservation bodies, of influencing policy-making and of protecting the environment.

30. In response to question 10, two respondents suggested that participation was particularly beneficial before a decision was taken, one of them going on to suggest that consultation before decision should rule out review after decision.

31. There were no responses to question 11.

32. In response to question 12, most respondents that gave a view on the partial Risk Impact Assessment were in favour of a 'streamlined' option in order to reduce time delays and costs where possible. One respondent supported option 5 as the key public involvement is at the outset. Two supported option 3 to ensure that public participation was only undertaken once in the process.

General comments

33. A total of 31 replies were received in response to the above consultation. No major issues were raised during the consultation period; and there was acknowledgement that the terms of the Public Participation Directive had to be incorporated into the air quality, nitrates and PPC legislation. The comments have provided a series of checks against which the Scottish Executive has been able to test its proposals. Out of the 31 replies to the consultation, 10 of them made comments relating to the proposals for including environmental NGOs with those involved in PPC permitting and in seeking to have such permitting decisions reviewed by a court. Responses to questions 8, 9, 10 and 11 above are relevant.

34. The amendments, described in the consultation document, to the nitrates legislation, the air quality legislation and the PPC regulations will bring them into line with the Public Participation Directive 2003/35/ EC.

35. A list of all those who responded to the consultation document is attached at Annex A

36. Changes to legislation that the Executive proposes relating to 11 other regimes, arising from this Directive, are being dealt with separately. A consultation on 7 regimes concerning environmental impact assessment, was launched on 12 ^th May. Other arrangements are being are being prepared regarding 4 waste regimes.

Next steps

• An analyses of all responses has been undertaken by the Scottish Executive
• Regulations to implement the changes to the air quality legislation and the Nitrates legislation have been laid in Parliament and are expected to come into force on 25 June 2005. The titles of the amending legislation are respectively 'The Air Quality Limit Values (Scotland) Amendment Regulations 2005" and "The Nitrates (Public Participation etc.) (Scotland) Regulations 2005".
• Regulations to implement the changes to the PPC legislation is being completed and will come into force after laying in the Scottish Parliament.
• Copies of full responses from those bodies who have given their consent will be made available shortly on the Scottish Executive website.

Annex A

List of respondents

1. Advocates Library
2. Black Environment Network
3. British Geological Survey
4. CBI Scotland
5. Chartered Institute of Waste Management
6. Chemical Industries Association
7. The Crown Estate East
8. East Aryshire Council
9. Food Standards Agency Scotland
10. Glasgow City Council
11. Hill & Robb
12. Industrial Packaging Association
13. Innovene
14. Joint Nature Conservation Committee
15. The Macaulay Institute
16. National Farmers Union Scotland
17. North Aryshire Council
18. Perth and Kinross Council
19. Professor Colin Reid
20. Royal Institute of Chartered Surveyors
21. RSPB Scotland
22. Scottish Coal Company Ltd
23. Scottish Environmental Services Association
24. Scottish Natural Heritage
25. Scottish Quality Salmon
26. Scottish Water
27. SEPA
28. UKAEA
29. United Kingdom Petroleum Industry Association Limited
30. West Lothian Council
31. 31. Scottish and Southern Energy PLC